Citation Nr: 0931271
Decision Date: 08/20/09 Archive Date: 08/27/09
DOCKET NO. 03-18 764 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for
service-connected osteoarthritis of the left hip.
2. Entitlement to a rating in excess of 20 percent for
service-connected residuals of medial and lateral
menisectomies of the left knee.
3. Entitlement to a rating in excess of 20 percent for
service-connected left ankle injury.
4. Entitlement to service connection for a right knee
disorder.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. M. Schaefer, Associate Counsel
INTRODUCTION
The Veteran had active service from March 1982 to February
1984.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision issued in June 2002
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Chicago, Illinois. In April 2007, the Board remanded
the case to the agency of original jurisdiction (AOJ) for
additional development, and it now returns to the Board for
appellate review.
In July 2003, the Veteran requested a hearing before a
Veterans Law Judge. A hearing, via videoconference, was
scheduled for January 2007; however, the Veteran failed to
report. As no further communication from the Veteran with
regard to a hearing has been received, the Board considers
his request for a hearing to be withdrawn. See 38 C.F.R. §§
20.702(d), (e); 20.704(d), (e) (2008).
In an October 2004 rating decision, the rating for
osteoarthritis of the left hip was increased from
noncompensable to 10 percent, effective May 27, 2004. The
claim for an effective date prior to May 27, 2004 for that
rating was granted by the Board in April 2007. However, the
increased rating claim was remanded at that time, and as 10
percent is less than the maximum benefit available, the issue
remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38
(1993).
An August 2006 rating decision, in pertinent part, denied a
claim for a total disability rating based on individual
unemployability (TDIU). The decision was not appealed.
However, in a May 2009 statement, the Veteran's
representative asserted he was unable to work as a result of
service-connected disorders. See Roberson v. Principi, 251
F.3d 1378 (Fed. Cir. 2001) ("[o]nce a veteran submits
evidence of a medical disability and makes a claim for the
highest rating possible, and additionally submits evidence of
unemployability, . . . VA must consider TDIU.") Such a
claim has not, however, been considered by the RO since 2006,
and, therefore, the issue of entitlement to TDIU is REFERRED
to the RO for appropriate action.
The issues of entitlement to a rating in excess of 20 percent
for service-connected left ankle injury and entitlement to
service connection for a right knee disorder are addressed in
the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. Service-connected osteoarthritis of the left hip is
manifested by subjective complaints of pain, flexion to 100
degrees, and X-ray evidence of minimal osteoarthritis.
2. Service-connected residuals of medial and lateral
menisectomies of the left knee consist of flexion to no less
than 90 degrees and full extension, not further limited by
pain, weakness, fatigability, or incoordination; and well-
healed, intact, and non-tender surgical scars.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for
service-connected osteoarthritis of the left hip have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a,
Diagnostic Code 5010 (2008).
2. The criteria for a rating in excess of 20 percent for
service-connected residuals of medial and lateral
menisectomies of the left knee have not been met. 38
U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5010-
5260 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the
Veteran's claims folder. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
evidence submitted by the Veteran or on his behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claims. The
Veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. Merits of the Claims
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2008). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The
basis of disability evaluation is the ability of the body as
a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be
resolved in the Veteran's favor. 38 C.F.R. § 4.3.
In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all
disability ratings are then combined in accordance with
38 C.F.R. § 4.25. Pyramiding, the evaluation of the same
disability, or the same manifestation of a disability, under
different diagnostic codes, is to be avoided when rating a
veteran's service-connected disabilities. 38 C.F.R. § 4.14.
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed all evidence of record pertaining to the history of
the Veteran's service-connected disabilities. In an
increased rating case the present disability level is the
primary concern and past medical reports do not take
precedence over current findings. Francisco v. Brown,
7 Vet. App. 55 (1994). However, the Board also notes that
the Court has held that staged ratings are appropriate for
increased rating claims when factual findings show distinct
time periods where the service-connected disability exhibits
symptoms that would warrant different ratings. Hart v.
Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v.
West, 12 Vet. App. 119 (1999). Thus, the Board has
considered the propriety of staged ratings in assessing the
Veteran's service-connected disabilities.
The Veteran's service-connected osteoarthritis of the left
hip is rated as 10 percent disabling pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5010 (2008). His service-connected
residuals of medial and lateral menisectomies of the left
knee are rated as 20 percent disabling pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Codes 5010-5260 (2008). The Veteran
contends that his symptomology is worse than is contemplated
under these ratings, and that higher ratings should be
assigned.
Under Diagnostic Code 5010, arthritis, due to trauma,
substantiated by X-ray findings is to be rated as arthritis,
degenerative, which is rated under Diagnostic Code 5003.
Accordingly, traumatic arthritis will be rated on the basis
of limitation of motion under the appropriate diagnostic
code(s) for the specific joint(s) involved. When, however,
the limitation of motion of the specific joint(s) involved is
noncompensable under the appropriate diagnostic code(s), a 10
percent rating is for application for each such major joint
or group of minor joints affected by limitation of motion, to
be combined, not added under Diagnostic Code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. With X-ray evidence of
involvement of 2 or more major joints, with occasional
incapacitating episodes, a 20 percent rating will be
assigned. With X-ray evidence of involvement of 2 or more
major joints, a 10 percent rating will be assigned. The 20
percent and 10 percent ratings based on X-ray findings will
not be combined with ratings based on limitation of motion.
Diagnostic Code 5003, Note (1).
Diagnostic Code 5251 provides a maximum rating of 10 percent
for limitation of extension of the thigh; thus, a rating in
excess of 10 percent is not available under this diagnostic
code. Further, as the Veteran's disability may not be
assigned ratings for both limitation of motion and arthritis
shown by X-rays, a separate rating under this code is not for
consideration.
Diagnostic Code 5252 provides a 10 percent rating for
limitation of flexion of the thigh to 45 degrees; a 20
percent rating where flexion is limited to 30 degrees; a 30
percent rating where flexion is limited to 20 degrees; and a
40 percent rating where flexion is limited to 10 degrees.
Diagnostic Code 5253 provides a 10 percent evaluation when
there is limitation of abduction such that the legs cannot be
crossed or there is limitation of rotation such that it is
not possible to toe out more than 15 degrees. A 20 percent
rating requires limitation of abduction with motion lost
beyond 10 degrees.
Under Diagnostic Code 5257, other impairment of the knee,
recurrent subluxation or lateral instability that is slight
is assigned a 10 percent rating. Moderate recurrent
subluxation or lateral instability is assigned a 20 percent
rating. Severe recurrent subluxation or lateral instability
is assigned a 30 percent rating.
Under Diagnostic Code 5258, dislocated semilunar cartilage
with frequent episodes of "locking," pain, and effusion
into the joint is assigned a 20 percent rating. Under
Diagnostic Code 5259, symptomatic removal of semilunar
cartilage warrants a 10 percent rating.
Under Diagnostic Code 5260, flexion of the leg limited to 45
degrees warrants a 10 percent rating. Flexion of the leg
limited to 30 degrees warrants a 20 percent rating. Flexion
limited to 15 degrees warrants a 30 percent rating.
Under Diagnostic Code 5261, extension of the leg limited to
10 degrees warrants a 10 percent rating. Extension limited
to 15 degrees warrants a 20 percent rating. Where extension
is limited to 20 degrees, a 30 percent rating is assigned.
Where extension is limited to 30 degrees, a 40 percent rating
is assigned. Where extension is limited to 45 degrees, a 50
percent rating is assigned.
The evaluation of the same disability under various diagnoses
is generally to be avoided. 38 C.F.R. § 4.14. The critical
element in permitting the assignment of several ratings under
various diagnostic codes is that none of the symptomatology
for any one of the conditions is duplicative or overlapping
with the symptomatology of the other condition. See Esteban
v. Brown, 6 Vet. App. 259, 261- 62 (1994).
The VA Office of General Counsel has provided guidance
concerning increased rating claims for knee disorders. The
General Counsel has stated that compensating a claimant for
separate functional impairment under Diagnostic Code 5257 and
Diagnostic Code 5003 does not constitute pyramiding, as long
as the rating is based on additional disability. See
VAOPGCPREC 23-97 (July 1, 1997). This opinion also provides
that separate ratings under Diagnostic Code 5257 and
Diagnostic Codes 5260, limitation of flexion of the knee, and
5261, limitation of extension of the knee are permissible.
Additionally, separate ratings under Diagnostic Code 5260 and
Diagnostic Code 5261 may be assigned for disability of the
same joint. VAOPGCPREC 9-04 (Sept. 17, 2004). Finally, in
VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel held
that if a veteran has a disability rating under Diagnostic
Code 5257 for instability of the knee and there is also X-ray
evidence of arthritis, a separate rating for arthritis could
also be based on painful motion under 38 C.F.R. § 4.59.
Normal (full) range of motion of the knee is from 0 degrees
of extension to 140 degrees of flexion. 38 C.F.R. § 4.71,
Plate II.
Normal hip flexion is from zero to 125 degrees, and normal
hip abduction is from zero to 45 degrees. 38 C.F.R. § 4.71,
Plate II.
The Veteran filed his claim in January 2002. During the
appeal period, he has been afforded several VA orthopedic
examinations, three of which are relevant to the instant
claims-April 2002, August 2004, and January 2009. He has
also sought treatment for these disabilities, to include
having had additional outpatient surgery on his left knee in
April 2007. The following medical findings are relevant to
the claims. The symptoms discussed are the most severe
reported, with appropriate consideration being given to
whether distinct changes in severity occurred across time so
as to warrant the staging of ratings for either disability.
With respect to the Veteran's left hip disability, the
medical evidence reveals the presence of minimal
osteoarthritis with complaints of pain. Neither the
subjective complaints of pain nor degree of arthritis are
shown to have increased over time. The Veteran exhibited
range of motion of 55 degrees external rotation, 40 degrees
internal rotation, and 100 degrees flexion in January 2009.
There are no other range of motion measurements of record for
the Veteran's left hip, and there was no additional
limitation reported as due to pain.
The Board notes that separate ratings for both limitation of
motion and painful motion due to osteoarthritis may not be
assigned. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and
5010. In order for a higher rating to be assigned for the
Veteran's service-connected left hip disability, he must
exhibit flexion to less than 30 degrees or abduction to no
more than 10 degrees. At 100 degrees, the Veteran's hip
flexion does not meet the criteria for a rating in excess of
10 percent, and no limitations of abduction are reported.
There is also no evidence he has experienced more severe
limitation of motion at any time during the appeal period.
Absent such evidence, a rating in excess of 10 percent for
service-connected osteoarthritis of the left hip is not
warranted.
The Board acknowledges the August 2004 VA examination report,
which states that the Veteran's left hip could not be
examined due to pain; however, such pain is inconsistent with
the remainder of the record. Thus, without association of
such symptomatology with the service-connected left hip
disability alone, rather than with his service-connected
neurological disorder or nonservice-connected back disorder,
for example, the Board does not find this degree of pain to
be representative of the severity if the Veteran's left hip
disability.
As for the Veteran's left knee disability, he has complaints
of constant pain. No laxity of the joint has been observed,
and testing of the medial and lateral collateral ligaments
has been negative. Range of motion measurements in April
2002 showed flexion to no more than 90 degrees and extension
to 10 degrees, both limitations due to pain. Subsequent VA
treatment records, as well as the August 2004 VA examination
report, reflect full extension and flexion limited to no less
than 105 degrees. In January 2009, full extension was noted
and there was no painful limitation at 30 degrees flexion.
Further, no additional limitation due to fatigue, weakness,
or incoordination was found at any time. Symptoms of greater
severity than those reported above were not documented.
Based on the above, the Board finds that a rating in excess
of 20 percent for service-connected residuals of medial and
lateral menisectomies of the left knee is not supported by
the evidence.
Specifically, absent evidence of flexion limited to less than
30 degrees, a rating in excess of 20 percent based on
limitation of flexion is not applicable. Separate or higher
ratings are also not warranted under Diagnostic Code 5257 as
no laxity of the knee has been demonstrated. Additionally,
although the Veteran has experienced torn cartilage and
surgical repair of the cartilage, there is no evidence that
his cartilage has been dislocated or that he has symptoms due
to removal of cartilage that would warrant assignment of
separate ratings under Diagnostic Codes 5258 or 5259.
Finally, for a separate compensable rating to be assigned for
loss of extension, the Veteran must experience limitation of
extension to at least 10 degrees. Although such limitation
appears to have been found in April 2002, full extension is
reported thereafter. In fact, in March 2007, just prior to
the Veteran's surgery in April 2007, he was able to fully
extend his leg. Thus, the Board does not find that
limitation of extension is a representative symptom of the
Veteran's service-connected left knee disability.
Accordingly, the Board determines that a rating in excess of
20 percent for the Veteran's service-connected residuals of
medial and lateral menisectomies of the left knee is not
warranted.
Consideration has also been given to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4 (2008), as required by Schafrath. However, Diagnostic
Codes 5250, 5256, 5262, and 5263, pertaining to hip
ankylosis, knee ankylosis, impairment of the tibia and
fibula, and genu recurvatum, respectively, are not for
consideration as the evidence fails to demonstrate such
symptomatology is present in the left hip or knee. Further,
the Veteran is reported to have several surgical scars
related to his service-connected left knee disability;
however, these scars are noted to be well-healed, intact, and
nontender. Therefore a separate evaluation for scars is not
warranted. 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804,
7805. As such, a review of the record fails to reveal any
additional functional impairment associated with the
Veteran's service-connected left hip and knee disabilities so
as to warrant application of alternate rating codes.
The Board has considered the Veteran's own statements
regarding the claimed severity of his service-connected
disabilities. The Veteran can attest to factual matters of
which he has first-hand knowledge, e.g., pain of the knee and
hip. See Washington v. Nicholson, 19 Vet. App. 362, 368
(2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).
However, only those with specialized medical knowledge,
training, or experience are competent to provide evidence on
the question of the severity of a disability, to include
measuring range of motion. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
Based on the above, the Board finds that a preponderance of
the evidence is against ratings in excess of 10 percent and
20 percent for service-connected left hip and left knee
disabilities, respectively. The Board has considered the
applicability of the benefit of the doubt doctrine. However,
in this case, the preponderance of the competent evidence
does not support the Veteran's claims; therefore, the benefit
of the doubt doctrine is not applicable in the instant
appeal, and his claims must be denied. 38 U.S.C.A. § 5107
(West 2002); 38 C.F.R. §§ 4.3, 4.7.
An extraschedular rating is a component of a claim for an
increased rating. Barringer v. Peake, 22 Vet. App. 242
(2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).
The threshold factor for extraschedular consideration is a
finding on the part of the RO or the Board that the evidence
presents such an exceptional disability picture that the
available schedular evaluations for the service-connected
disability at issue are inadequate. Thun v. Peake, 22 Vet.
App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60
(1993); 38 C.F.R. § 3.321(b)(1). If so, factors for
consideration in determining whether referral for an
extraschedular rating is appropriate include marked
interference with employment or frequent periods of
hospitalization that indicate that application of the regular
schedular standards would be impracticable. Thun, citing 38
C.F.R. § 3.321(b)(1) (2008). In the present case, the Board
finds no evidence that the Veteran's service-connected left
hip and knee disabilities present such an unusual or
exceptional disability picture at any time so as to require
consideration of an extra-schedular evaluation pursuant to
the provisions of 38 C.F.R. § 3.321(b)(1). In this case, the
Veteran's left hip and knee symptoms fall well within the
criteria as defined in the rating schedule. The Board
acknowledges that the Veteran has difficulty with mobility,
but also sees that the Veteran was attending school during
the appeal period, which belies a lack of marked interference
with activities such as would warrant extraschedular
contemplation. Additionally, no incidents of hospitalization
or incapacitation due to these disabilities are documented.
Therefore, the Board finds that referral for extraschedular
ratings is not necessary in this case.
II. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
certain duties upon VA to notify the claimant of the shared
obligations of the claimant and VA in developing his or her
claim and to assist the claimant by making reasonable efforts
to obtain relevant evidence in support of the claims. 38
U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
VA must inform a claimant about the information and evidence
not of record that is necessary to substantiate the claims,
the information and evidence that VA will seek to provide,
and the information and evidence that the claimant is
expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73
Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Further, the Court of
Appeals for Veterans Claims (Court), in the consolidated
appeal of Dingess/Hartman v. Nicholson, held that VCAA notice
requirements also apply to the evidence considered in
determinations of the degree of disability and effective date
of the disability once service connection has been
established. 19 Vet. App. 473 (2006).
In addition to the above, in Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008), the Court indicated that, at a minimum, the
notice required for an increased-compensation claim must
advise the claimant to submit evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on his or her employment and daily
life and provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain). Also, if the Diagnostic Code under which the
claimant's disability is rated contains criteria necessary
for entitlement to a higher disability rating that would not
be satisfied by a demonstration of noticeable worsening or
increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life
(such as a specific measurement or test result), the
Secretary must provide at least general notice of that
requirement to the claimant.
VCAA notice must be provided before the initial unfavorable
agency of original jurisdiction (AOJ) decision on the claims
for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112
(2004). In this case, the Veteran was provided with a VCAA
notification letter in March 2002, prior to the initial
unfavorable rating decision issued in June 2002. An
additional VCAA notice was sent in October 2007, including
notice with regard to the assignment of disability ratings
and effective dates.
The Board observes that the March 2002 letter informed the
Veteran that he must demonstrate that his service-connected
disabilities had increased in severity and provided examples
of both lay and medical evidence he could submit in support
of his claims. However, only the October 2007 notice advised
him to submit evidence of how his disabilities affect his
work and daily life, and no notice apprised him of relevant
diagnostic codes, although they were detailed in the April
2003 statement of the case (SOC). Nevertheless, the Board
finds that no prejudice has resulted from the inadequacy of
notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the Veteran has been prejudiced
thereby).
Specifically, the United States Court of Appeals for the
Federal Circuit (Federal Circuit) has held that an SOC or
supplemental SOC (SSOC) can constitute a "readjudication
decision" that complies with all applicable due process and
notification requirements if adequate VCAA notice is provided
prior to the SOC or SSOC. See Mayfield v. Nicholson, 499
F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III]. As a
matter of law, the provision of adequate VCAA notice prior to
a readjudication "cures" any timing problem associated with
inadequate notice or the lack of notice prior to an initial
adjudication. See Mayfield III, (citing Mayfield v.
Nicholson, 444 F.3d at 1328). In the present case,
subsequent to the October 2007 letter, the Veteran's claims
were readjudicated in SSOCs, thereby resolving the problem of
inadequate timing with regard to that notice.
As for the lack of proper notice of the applicable diagnostic
codes, the Board notes that a June 2009 submission by the
Veteran's representative details the diagnostic codes under
which the Veteran's disabilities are assigned. Hence, actual
knowledge by the Veteran of the criteria he must meet for
increased evaluations has been demonstrated. Thus, the Board
finds that the inadequate notice in this case has been
rendered harmless.
Based on the above, the Board determines that the content
requirements of VCAA notice for increased compensation claims
have been met and the purpose of such notice, to promote
proper development of the claims, has been satisfied. See
Vazquez-Flores at 41, citing Mayfield, 444 F.3d at 1333.
Accordingly, the Board finds that further VCAA notice is not
necessary prior to the Board issuing a decision.
In light of the above, the Board concludes that the medical
evidence of record is sufficient to adjudicate the Veteran's
claims without further development and additional efforts to
assist or notify the Veteran in accordance with VCAA would
serve no useful purpose. See Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (strict adherence to requirements of the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the Veteran). Therefore, the Board determines that the
Veteran will not be prejudiced by the Board issuing a
decision on the merits.
ORDER
Entitlement to a rating in excess of 10 percent for service-
connected osteoarthritis of the left hip is denied.
Entitlement to a rating in excess of 20 percent for service-
connected residuals of medial and lateral menisectomies of
the left knee is denied.
(CONTINUED ON NEXT PAGE)
REMAND
The Board finds that remand is necessary with respect to the
left ankle increased rating claim and the right knee service
connection claim as the actions by the RO/AMC while these
claims were in remand status were not fully compliant with
the Board's April 2007 remand orders.
Specifically, the Veteran was to be provided notice as to how
to establish service connection for a right knee disability
on a secondary basis and scheduled for a VA examination with
regard to the etiology of his right knee disorder. With
respect to the notice, the Board observes that an October
2007 VCAA letter indicated that the letter was concerning the
claim for service connection for a right knee disorder, to
include on a secondary basis; however, the letter does not
advise the Veteran of the evidence necessary to substantiate
a claim for service connection on a secondary basis.
Additionally, the purpose of the VA examination was to
ascertain whether there is a relationship between the
Veteran's current right knee disorder and his military
service and/or his service-connected disabilities of the left
lower extremity. Particularly, other than considering a
possible direct link to service or to one or more service-
connected disabilities, the examiner was to assess whether
the Veteran's service-connected left peroneal nerve, foot,
ankle, knee, and/or thigh disabilities played a causal role
in the October 2003 fall that resulted in the Veteran's
injury to his right knee. The Veteran was afforded a VA
examination in January 2009, and the examiner opined that the
Veteran's right knee disorder was more due to the October
2003 fall than to military service or the service-connected
left lower extremity disabilities. Although the examination
report is very detailed, the examiner failed to address the
question with respect to the cause of the October 2003 fall.
The Court has held "that a remand by this Court or the Board
confers on the Veteran or other claimant, as a matter of law,
a right to compliance with the remand orders." See Stegall
v. West, 11 Vet. App. 268, 271 (1998). Consequently, the
Board finds it necessary to remand this claim to obtain
compliance with its April 2007 remand orders.
As for the left ankle disability, the April 2007 remand noted
that when service connection was originally granted in June
2002, the RO rated the disability under Diagnostic Code 5271
for limitation of motion, but in October 2003 changed the
assigned Diagnostic Codes to 5024-5311 without explanation or
notice to the Veteran of the change. Seeing that Diagnostic
Code 5024, which pertains to tenosynovitis-the service-
connected disability in this case -directs that the
disability is to be rated as degenerative arthritis, based on
limitation of motion of the affected parts, the Board
instructed that the RO/AMC was to evaluate whether a rating
in relation to Diagnostic Code 5311, pertaining to Muscle
Group XII, is appropriate in this case. If so, the VA
examination was to address the relevant symptoms, and the
Veteran was to be afforded citation to the relevant
regulations and Diagnostic Code.
The Board observes that neither the January 2009 VA
examination request nor the examination report discusses
muscle injuries, but there is also nothing in the record to
show that the RO performed the requisite review of the
diagnostic codes under which the left ankle disability is
rated so that examination of the muscles was not necessary.
Rather, in the January 2009 SSOC, the RO/AMC sidestepped the
question by determining that the amputation rule precluded a
higher rating for service-connected left ankle tenosynovitis.
See 38 C.F.R. § 4.68. Be that as it may, the Veteran is
still entitled to compliance with the Board's orders with
respect to this disability. See Stegall at 271. Thus, the
Veteran's claim for a rating in excess of 20 percent for
service-connected left ankle disability must also be
remanded.
Accordingly, the case is REMANDED for the following action:
1. Provide to the Veteran a corrective
VCAA notice that complies with all VCAA
notice requirements applicable to the
claim for service connection for a
right knee disability on a secondary
basis, including, but not limited to,
what the evidence must show to
establish service connection on a
secondary basis.
2. Return the Veteran's claims files to
the same VA examiner that conducted the
January 2009 Compensation & Pension
examination. If that individual is not
available, any medical professional can
provide the following opinion. The
claims file, and a copy of this REMAND,
must be provided for review, and the
report should reflect that such review
occurred. Upon a review of the record,
the medical professional should respond
to the following:
Is it at least as likely as not (50
percent or greater) that the Veteran's
service-connected left hip, knee,
ankle, peroneal nerve, and/or foot
disabilities caused the October 2003
fall that resulted in injury to his
right knee?
The term "as likely as not" does not
mean merely within the realm of medical
possibility, but rather that the weight
of medical evidence both for and
against a conclusion is so evenly
divided that it is as medically sound
to find in favor of causation or
aggravation as it is to find against
it.
A rationale for any opinion advanced
should be provided. If an opinion
cannot be formed without resorting to
mere speculation, this should be
stated.
3. After completing the above actions and
any other development as may be
indicated by any response received as a
consequence of the actions taken in the
preceding paragraphs, the Veteran's
claims should be readjudicated, to
include all evidence received since the
April 2009 supplemental statement of
the case.
For the left ankle disability in
particular, the RO/AMC must determine
whether basing the rating of the
disability under Diagnostic Code 5024
on the criteria under Diagnostic Code
5311 (muscle injury) is more
appropriate than rating the disability
under Diagnostic Code 5271 for
limitation of motion. If so, all
necessary development should be
accomplished so that proper analysis
for rating muscle injuries may occur.
In addition, the RO/AMC must explain
why rating based on limitation of
motion, as directed in DC 5024
(tenosynovitis) is not appropriate.
[Although not on appeal, the RO may
wish to review whether the peroneal
nerve injury should be rated under one
of the diagnostic codes explicitly for
peroneal nerve disabilities (38 C.F.R.
§ 4.124a, Codes 8521 to 8523; 8621 to
8623; and 8721 to 8723) rather than DC
5284 (other musculoskeletal injuries of
the foot), in ensuring that pyramiding
is avoided. See 38 C.F.R. § 4.14; see
also Esteban at 262.]
Should the claims not be resolved to
the Veteran's satisfaction, he and his
representative should be issued another
SSOC. An appropriate period of time
should be allowed for response.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MICHELLE L. KANE
Chief Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs